Ramchandra Barik and Others vs Dibakar Das

Shearer, J.—This second appeal is by the plaintiffs and arises out of a suit, in which it was claimed that the residents of Jankhrai and other villages in the vicinity of Jankhrai had a right of way across a strip of land belonging to the defendant. The defendant has rights of occupancy in two paddy fields in Jankhrai. Between these two paddy fields is a ridge about two feet broad, and it was claimed that the villagers of Jankhrai and other persons residing in the locality had a right of way along this ridge.

Until recently, one of the two paddy fields was in the occupation of another person. The defendant took a conveyance of this parcel of land, and proceeded to amalgamate it with the other parcel, which had belonged to him previously. He seems to have put up some kind of fence round the whole of the land in order to prevent cattle from damaging his paddy. Subsequently, he, also, seems to have demolished the ridge between the two parcels. In the plaint, it was asserted that the right, which was claimed, was a right in the nature of an easement and arose out of necessity, as, if persons residing in this locality were not permitted to go along this strip of land, they could not reach the Grand Trunk Road or the river Hulhulia. The learned Munsif was satisfied that there were other routes, by which these two objectives could be reached.

Nevertheless, the learned Munsif decreed the suit on the assumption that the right claimed was a right in the nature of an easement and had been acquired by prescription. This decision was reversed, on appeal, by the learned Subordinate Judge. It is quite clear that the right claimed, if it exists, is a right in gross and not an easement, as it is enjoyed independently and not for the beneficial enjoyment of any land belonging to the persons who claim it. Apparently, this was recognized before the appeal came on for hearing, and, in the lower appellate Court, it was asserted that the right was founded on custom.

No evidence was, however, led to show the existence of any custom in this village, under which residents in the locality were entitled to pass along the ridges of paddy fields. If there was a local custom of this kind, it would, perhaps deprive the occupiers of land, on which paddy is grown, from exercising the right which they undoubtedly have, under the ordinary law, to put up fences round their land in order to keep cattle out of it. I may say that I have never myself heard of the existence of any such local custom and very much doubt if, in law, it could be a good custom. In second appeal, the learned advocate for the appellants has endeavoured to make out still another case for them. He points out that the learned Munsif came to the conclusion that the villagers of Jankhrai had been enjoying a right of way across the land of the defendant for more than 20 years, and had been doing so openly and as of right. He went on to suggest that the learned Subordinate Judge had not found, in express terms, that the period, for which this right had been enjoyed, was less than 20 years.

In these circumstances, he contended, a presumption arose that the defendant had dedicated this strip of land belonging to him to the general public for its use as a pathway. When a Court of law is called upon to say whether or not there has been a dedication of land or of the user of land for any such purpose, it has to consider what has been done or has been omitted to be done by the owner of the land, and to decide whether a presumption can and ought to be drawn, from the various acts of commission or omission, that the land or the user of the land has been dedicated to the public.

Whether the acts or omissions relied on extend over a period of more than 20 years or less than 20 years is, in such a case, not very material. What is relied on in this particular case is that the defendant and the person, from whom he recently took a conveyance of part of the land now occupied by him, never stopped their co-villagers from passing along the ridge between their respective fields. I am not prepared to infer from this that they had abandoned the right, which they undoubtedly had originally, to stop people using the ridge as a foot-path, if, for any reason, they thought it necessary to do so.

Apart from this, if the claim is sought to be based on a supposed dedication, there are other difficulties in the way of the plaintiffs: more particularly, neither the defendant nor the person, who was, until recently, in possession of one of the two paddy fields, were the full owners of this land. No one, however, other than the proprietor of land can dedicate it or the user of it to the general public. In my judgment, the decision of the learned Subordinate Judge was correct, and this appeal will accordingly be dismissed with costs.